YOUSAF KHAN and others vs DOST MUHAMMAD
This petition for leave to appeal arises out of concurrent findings of the lower courts and the Lahore High Court dismissing the petitioners' suit for declaration of title and recovery of possession regarding the suit-land. The core legal question is whether the petitioners established their title and whether the suit was barred by previous litigation and adverse possession. The Supreme Court held that the petitioners failed to prove a better title on the strength of their own case, that adverse possession by the defendant's predecessor was established, and that the petition was devoid of merit. The key principle laid down is that a plaintiff must succeed on the strength of their own case and not on any weakness in the defense, and that adverse possession can mature into full title.
- Must a plaintiff succeed on the strength of their own case rather than upon any weakness in the defense?
- Can adverse possession for the required number of years give full title to the property?
- Are courts justified in awarding special costs when plaintiffs launch upon frivolous litigation?
ORDER
1. ABDUL KADIR SHAIKH, J.---This petition for leave to appeal from the judgment of Lahore High Court, Rawalpindi Bench, arises out of a suit filed by petitioners against the first respondent for declaration of title to suit-land, confirmation of possession thereof or in the alternative for recovery of possession. The first respondent resisted the suit on several pleas, including that the suit was barred by res judicata. Learned trial Judge decided all the issues against the petitioners and dismissed the suit. Learned District Judge on appeal at the instance of the petitioners, upheld the findings of the learned trial Judge. The petitioners then challenged the judgment and decree of the two Courts in Revision Application in the High Court, but without any success and it is in these circumstances that they now seek leave to appeal. Mr. A. Munir Peracha, learned counsel for the petitioners appearing in support of the petition submits that the previous judgments do not operate as res judicata because petitioners-plaintiffs 1 and 2 were not parties to the previous litigation.
2. We find that this plea has been rejected by the learned Judge in the High Court on very valid and cogent grounds which may be reproduced hereunder: "It is true that plaintiffs 1 and 2 were not parties to the previous litigations but Sajawal Khan their brother plaintiff No,2 was. However, this circumstance, in itself, cannot materially assist plaintiffs No,1 and 2 to claim ownership rights in the property and dislodge defendant from possession.
3. Aforementioned judgments in conjunction with the other evidence sufficiently establish that Akbar Khan held the property adversely for a required number of years which gave him full title to it.
4. Plaintiffs 1 and 2 did not enter the witness box. Only Sajawal Khan had appeared as P.W.3. In case, judgments are excluded from consideration qua plaintiffs 1 and 2, even then plaintiffs had failed to prove their better title to regain possession from the defendant. It is settled law that plaintiffs must succeed on the strength of his own case and not upon any alleged weakness in defence. Except for the oral interested testimony, there is no reliable evidence that plaintiffs are owners of the property in dispute. If the matter is looked at from this angle, plaintiffs had no case on merits. Be that as it may, upon present records, it is adequately established that the defendant's father had acquired ownership rights in the suit property on account of holding it adversely to the true owners for a required number of years and had passed his title to his son who is entitled to remain in its uninterrupted possession on account thereof. When I look at the records, I have gained an impression that plaintiffs, despite clear knowledge, had launched upon frivolous litigati6n_ and unnecessarily burdened the defendant with its expense. In this view, Courts below rightly awarded special costs which may not be a sufficient recompense for actual expenses of litigation.
5. Nonetheless, it provides some solace."
6. In view of these findings there is hardly any scope for interference by this Court. The petition is, therefore, dismissed.